28 P. 425 | Idaho | 1891
This is an action brought to compel the specific performance of a contract to convey a two-thirds interest in a mining claim. The amended complaint is as follows:
“[Title of Court and Cause.]
“Come now the plaintiffs above named, and by leave of the eourt first had and obtained, file this their amended complaint, and allege: 1. That the plaintiffs now are, and during all the times hereinafter mentioned were, citizens of the United States over the age of twenty-one years. 2. That prior to and at the time of the making and delivery of the agreements hereinafter mentioned the defendants George Comegys, Lake D. Wolfard, and Samuel B. Morgan represented and stated to the plaintiffs that they, the said Comegys, Wolfard, and Samuel B. Morgan, were the sole owners of that certain lode mfnfng hi a im*206 known as and called the ‘Tuseumbia lode/ situated on Goat mountain, in Beaver mining district, county of Shoshone and territory of Idaho, and being fifteen hundred (1,500) feet in length and six hundred (600) feet in width, and lying between the Tough Nut mine on the west and the Sitting Bull and Parrott mines on the east, as the same was located and marked upon the ground, and being the same mining claim located on the twentieth day of August, 1883, by William Sutherland* Charles W. Toole, and the defendant Samuel B. Morgan. 3. That heretofore, to wit, on the sixth day of March, 1888, the said defendants George Comegys, Lake D. Wolfard and Samuel B. Morgan, for a valuable consideration, made and entered into an agreement in writing to and with the plaintiffs, a copy of which agreement is hereto attached, and marked exhibit 'A/ and hereby made a part of this complaint; and that the 'Tuseumbia mine/ mentioned in said agreement, was the same lode mining claim heretofore described as the ‘Tuscumbia lode* mining claim, and none other; and that at the time of making of said agreement the plaintiffs believed said statements and representations of said defendants Comegys, Wolfard, and Morgan, to the effect that they were the sole owners of said mining claim, and that, relying upon said statements and representations, and believing the same to be true, plaintiffs entered into, said agreement. 4. That immediately after the making and entering into said agreement as aforesaid, and still relying upon said statements and representations, and believing the same to be true, and under and in pursuance of said agreement, and in performance of the terms and conditions of said agreement on their part, the plaintiffs in good faith entered into the possession of said mining claim, and commenced the work of prospecting and developing of said mining claim, and thereafter continued the said vnrk of prospecting and developing of the said mining claim in a judicious manner, and in the manner for the best development thereof, and in so doing the plaintiff expended on said mine in such work more than five hundred ($500) dollars per month, until they had expended therein and in such work more than the sum of five thousand ($5,000) dollars, and that by such work and expenditure the said mining claim was developed from a mere prospect of but small value into a mine'*207 worth many thousands of dollars, and that plaintiffs have ever since continued to be, and are now, in possession of said premises. 5. That afterward, to wit, on the first day of September, 1888, the plaintiffs elected to purchase the said two-thirds interest in said mining claim, and to form a corporation to own and work said mining claim, as provided in said agreement they might do, and notified said defendants Comegys, Wolfard, and Morgan of such election, and that said defendants Comegys, Wolfard, and Morgan, for a valuable consideration, entered into a supplemental agreement to and with the plaintiffs, whereby and by the terms whereof they agreed with plaintiffs that the plaintiffs should have until the first day of October, 1888, in which to elect to purchase the two-thirds interest in said mining claim mentioned in said agreement of March 6, 1888, and that time for making the payment of the sum of three thousand ($3,000) dollars therein [mentioned] should also be extended until said first day of October, 1888. 6. That said defendants Comegys, Wolfard, and Morgan were not at the time of making of said statements and representations and agreement of March 6, 1888, the sole owners of said Tuseumbia lode mining claim, as stated and represented by them as aforesaid, hut, on the. contrary, only held the title to an undivided fifty-sixtieths (50-60) thereof; and that the other undivided ten-sixtieths (10-60) thereof was owned by one Elgin Wilcox and one Charles W. Toole. That after the making of said agreement, to wit, on the fourth day of May, 1888, in a certain action then pending in the district court of said Shoshone county, wherein Charles W. Toole was plaintiff, and the defendant herein, Samuel B. Morgan, was defendant, a writ of attachment duly issued out of said court, and all of the right, title, and interest of the said Samuel B. Morgan in and to said mining claim was duly levied upon and attached by the sheriff of said county, as security for the payment of the sum of seven hundred and fifty ($750) dollars, then due and owdng from said Morgan to the said Toole, which said attachment became and remained a lien upon said Morgan’s interest in said mining claim from the said date of the levy of said attachment until long after the said first day of October, 1888. And that on said first day of October, 1888, there was also pending in the district court of said county a*208 certain action wherein Charles W. Toole and Elgin Wilcox and the defendant Samuel B. Morgan were plaintiffs, and the said defendants Comegys and Wolfard were defendants, in which action notice of the pendency thereof was duly filed in the office of the county recorder of said county, which action was brought for the purpose of obtaining a decree of said court setting aside and declaring void a certain deed, dated November 29, 1886, from William Sutherland to said defendants Comegys and Wolfard, and adjudging aud decreeing the [said] Charles W. Toole and Elgin Wilcox to be the owners of an undivided one-sixth interest in said mining claim, and which said deed so sought to be set ¿side was a deed from said William Sutherland, one of the locators of said mining claim, to said Comegys and Wolford, and was part of the claim of title to said mining claim. That said last-mentioned action remained pending and undetermined in said court until the fourth day of June, 1889; and that on that day the said Comegys and Wolfard, without notice to the plaintiffs herein, and without their knowledge or consent, conveyed to said Elgin Wilcox and Charles W. Toole an undivided one-sixth interest in said mining claim. 7. That, after the first day of October, 1888, and prior to the fourth day of June, 1889, to wit, on the twenty-second day of May, 1889, the defendant Samuel B. Morgan conveyed to the defendant James W. Mc-Kune an undivided one-fourth interest in and to said mining claim, and plaintiffs allege that at the time of the making and delivery of said last-named deed the said defendant McKune had full knowledge of the said agreements between plaintiffs and defendants Comegys, Wolfard, and Morgan, and of the plaintiffs’ rights thereunder, and that the plaintiffs allege upon information and belief that the defendants conspired together to cheat and defraud plaintiffs by clouding and embarrassing the title to said mining claim by placing the title thereto in the hands of third persons, who would pretend to be innocent purchasers, and that said deed to said McKune was made in pursuance of said conspiracy, and that the title to the interest so conveyed to said McKune was and is held by said McKune for the benefit of the defendants, and not otherwise; whereby the value of said mining claim was greatly diminished to the plaintiffs. 8. Plaintiffs further allege that they fully and in all*209 respects complied with and performed all the terms and conditions of said agreements on their parts to be performed, until the said first day of October, 18S8, and that they have at all times been ready and willing to carry out and perform all the terms and conditions thereof on their part to be kept and performed for the purchase of said two-thirds interest and the organization of said corporation in accordance with the terms of said agreements. But plaintiffs allege that the defendants Comegjrs, Wolfard and Morgan have not at any time since the making of said agreements been able to or in condition to carry out or perform the conditions of said agreements on their part to be performed. 9. That, although the said defendants have never been able or willing to comply with their said contract to convey the said Tuseumbia mine and premises as required, the plaintiffs have offered and are willing to waive the inability hereinbefore stated, and to accept a conveyance from the defendants of the two-thirds thereof to themselves, and have been always heretofore ready and willing to make the payments in said agreements specified therefor, and, in pursuance thereof, have, prior to this action, offered to pay the said defendants the sum of money specified as the purchase price, and demanded of the defendants the conveyances required in such case by said agreements; and plaintiffs allege that the said purchase price was declined by defendants, and the demand for conveyance refused; wherefore plaintiffs claim relief as follows: That the defendants be required to convey to the plaintiffs, upon the payment of the purchase price specified, less such deduction as the court may find to be equitable on account of the inability of defendants to fully comply with said agreements the premises so agreed by them to be conveyed, to wit, an undivided two-thirds of said Tuseumbia mine; that the conveyance to said MeKune be declared and decreed to be fraudulent and void as against the plaintiffs; that the amount, less any deductions from said purchase price, be ascertained and determined, and the amount to me paid to the defendants be in like manner ascertained and determined. And as a further relief, pending this action, the said defendants and all persons claiming interests in said mine adverse to the plaintiffs and under these defendants be enjoined from interfering with the possession of these plain*210 tiffs in. or to said premises, or to the ores or minerals therein or thereon, and from conveying or encumbering the same, until the final determination of this action, and for such other and further relief as may be equitable and just, and for costs.
“JOHN R. McBRIDE,
“W. T. STOLL,
“ALBERT ALLEN, “Attorneys for Plaintiffs.”
EXHIBIT 'A/
“This agreement and contract, made this sixth day of March, A. D. 1888, by and between George Comegys, Lake D. Wolfard, and Samuel B. Morgan, parties of the first part, and Alexander H. Tarbet, and Oliver Durant, parties of the second part, witnesseth that the said parties of the first part for and in consideration of the covenants and agreements hereinafter made and to be performed by said parties of the second part, agree that the parties of the second part herein may take immediate possession of the 'Tuscumbia’ mine for the purpose of prospecting and doing development work thereon. The parties of the second part herein agree to commence such prospecting and development work not later than June 1, 1888, and continue the same in a judicious manner for the best development of said Tuscumbia mine, at an expenditure of not less than $500 per month on said mine, until the whole sum of $3,000 is expended. That on or before the first day of September, 1888, the parties of the second part may elect to purchase an undivided two-thirds interest in said mine for the sum of $17,000 to be paid to the parties of the first part as follows: $3,000 on the said first day of September, A. D. 1888, and the sum of $14,000 to be paid to the parties of the first part on or before December 1, A. D. 1888. Whereupon, after said conditions and terms are fully complied with on the part of the parties of the second part, and as soon as said $14,000 shall have been paid to the parties of the first part, according to the terms and in the mariiter hereinbefore set forth, then the parties of the first part herein agree and covenant with the parties of the second part to remise, release, and forever quitclaim unto the parties of the second part an undivided two-thirds interest in and to the 'Tus*211 cumbia’ mine. Upon the parties of the second part purchasing the said two-thirds interest in the said ‘Tuseumbia’ mine as aforesaid, they, the said parties of the second part, may elect to form a corporation for the purposes, among others, of purchasing and working the said mine, such corporation to have a capital stock of $1,500,000, to consist of 300,000 shares of the par value of five dollars per share, fully paid up, and non-assessable; of said stock 50,000 shares to be set aside as a working capital, and the remaining 250,000 shares to be issued to the parties hereto, respectively, according to their respective interests in said mine, in payment therefor, to wit, to the parties of the first part 83,334 shares, and to the parties of the second part 166,666 shares; and upon the receipt of the same the said parties hereto do hereby mutually agree one with the other to make, execute and deliver a good and sufficient deed conveying by quitclaim to such corporation such parties’ interest in said mine; that is to say, the first party shall convey and quitclaim the undivided one-third interest in said mine, and the second parties the undivided two-thirds interest in said mine, to such corporation. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.
“GEORGE COMEGYS. [Seal] “Witness signature George Comegys; J. N. BALTHIS.
“LAKE D. WOLEARD. [Seal] “Witness signature of Lake D. Wolfard: THOMAS SECRETT.
“SAMUEL B. MORGAN. [Seal] “Witness signature Samuel B. Morgan: J. W. McKUNE.
“ALEX. H. TARBET. [Seal] “Witness signature Alex. H. Tarbet: F. T. McBRIDE.
“OLIVER DURANT. [Seal] “Witness signature Oliver Durant: C. M. HALL.”
The defendants interposed demurrer to the amended complaint, on the ground that said complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the court. The plaintiffs thereupon elected to stand upon their amended complaint, and thereafter said action was dismissed at plaintiffs’ costs. Thereupon an appeal was
The respondents question the authority of the court below to enter judgment, as was done in this case, and cite some authority in support of that proposition, but, in our view of the ease, it is unnecessary for us to pass upon the question thus raised. The demurrer admits all of the allegations of the amended complaint. The question for our determination then is, Do the facts stated in the amended complaint authorize the court to enter a decree in favor of the plaintiffs? The agreement on which this action was brought is attached to the amended complaint, and inade a part thereof, and is above set forth in full. It is admitted that the appellants did not tender the $3,000, due by the terms of the original agreement on the first day of September, 1888, and by the supplemental agreement, on the first day of October, 1888. It is also conceded that appellants failed to tender the $14,000 due by the terms of said agreement on the first day of December, 1888. It is also conceded that the appellants have been in default. The question then is, Do they allege in their amended complaint facts and circumstances sufficient to warrant a court of equity to compel a specific performance of the contract sued on? Appellants contend that time is not of the essence of said contract, and claim that the rule that should govern in this case was stated by Chief Justice Marshall in Brashier v. Qralz, 6 Wheat. 533, as follows: “If then, a bill for a specific performance be brought by a party who is himself in default, the court will consider all the circumstances of the case, and decree according to those circumstances.” Eeferring to the class of cases to which the above rule applies, Justice Story, in Taylor v. Longworth, 14 Pet. 172, says: “But in all such cases the court expects the party to make out a case free from all doubt, and to show that the relief he asks is, under all the circumstances, equitable, and to account in a reasonable manner for his delay
Appellants contend that respondents were not in a position to comply with their covenants in said agreement, for the reason that the interest of said defendant Morgan in said mine had been encumbered by the levy of a writ of attachment thereon to secure the payment of $750, and for the further reason that Toole, Elgin, and respondent Morgan had brought suit against respondents Comegys and Wolfard for the purpose of obtaining a decree for a one-sixth of said mine; that for these reasons the appellants were excused from tendering the purchase price, when due by the terms of said contract, as such tender would have been an idle act. The amended complaint fails to show that appellants did not have full knowledge of said encumbrance and suit on the first day of September, 1888, when they paid a valuable consideration for an extension of the time in which to elect to purchase said mine, and in which to pay the $3,000. Instead, then, of standing on the proposition “that, as
It is alleged in the amended complaint that said mine had been developed from a mere prospect into a mine worth many thousands of dollars, by the expenditures of appellants. What, then, was the condition? A mine worth thousands of dollars, with $3,000 due the respondents on the first day of October, 1888, provided appellants elected to purchase two-thirds of said mine, and $14,000 due from appellants on December 1, 1888. Under such circumstances, would not the appellants have been in better standing in a court of conscience if they had tendered to respondents on October 1, 1888, the $3,000, less the amount necessary to satisfy said attachment lien of $750 ? Would they not, by thus doing, have shown themselves more ready, willing, prompt, and eager to comply with their covenants in said contract than they have by refusing to tender the first payment, for the reason that the respondents were not in a position to convey one-third of said mine to a corporation not yet in existence, after having conveyed to appellants two-thirds thereof ? Appellants contend that their delay and omission in tendering payment are justified, because they had elected on September 1, 1888, to incorporate a company to purchase and work said mine, and respondents were not in a position to convey the one-third interest to a corporation not yet in esse. The question arises as to the date when appellants had the right to elect to incorporate a company for the purpose of purchasing and work